SARWAR vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Sarwar, who was implicated in a case registered under sections 302, 365, 147, 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the applicant was entitled to bail given that co-accused persons, including the main accused who had allegedly confessed, were previously acquitted by the trial court due to a lack of evidence, and no new evidence existed against the applicant. The Sindh High Court held that the applicant's case warranted further inquiry, noting that the prosecution's evidence had already been evaluated during the trial of the co-accused, resulting in their acquittal for lack of incriminating material. The court affirmed the principle that where the evidence against an applicant is identical to that of co-accused who have been acquitted for lack of probability of conviction, and no specific, fresh evidence is presented against the applicant, the case falls within the scope of further inquiry, thereby entitling the accused to the concession of bail.
- Is an accused entitled to bail when co-accused persons implicated on the same evidence have already been acquitted by the trial court?
- Does the absence of new evidence against an applicant, following the acquittal of co-accused in the same case, constitute grounds for further inquiry under bail law?
- Section 302, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 174, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
ORDER
' Applicant Sarwar has sought bail in a case registered at Police Station Saeedabad for an offence punishable under sections 302/365/147/148/149, P. P . C .
2. According to F.I.R., the complainant, namely S.H.O. Safdar Ali of Police Station Saeedabad was on patrol on 26-6-1995 when he received information that dead bodies were lying in four sacks in sector 4-E. He reached there and took necessary proceedings under section 174, Cr.P.C. And got the dead bodies identified. After completing formalities he lodged F.I.R. On behalf of Slate on the same day against unknown persons.
3. Learned counsel for applicant contended that main accused Arshad was arrested in this case and he made judicial confession wherein he disclosed the name of present applicant also but he (Arshad) has been acquitted by the trial Court under section 265-K, Cr.P.C. Further, another co- accused was granted bail during the trial whereas the case of present applicant is on a better footing. It was also contended that neither identification test parade was conducted in respect of the applicant nor any direct evidence was collected against him during the investigation. Mr. Fazalur Rehman learned State Counsel submitted that in view of the aforesaid stated circumstances the guilt of applicant calls for further enquiry.
4. The order, dated 12-9-1998 passed by the learned trial Court shows that co-accused Arshad, Anwar and Shaukat were acquitted under section 265-K, Cr.P.C. As there was no evidence against them. The only allegation against the applicant is that he was present in the cell where five persons were brought and killed. Indeed, the entire evidence available with the prosecution was fully considered in the case against co-accused and it was found that there was no probability of their conviction, while there is no new evidence against the present applicant. I agree with learned counsel for the applicant and learned State Counsel that the guilt of present applicant calls for further enquiry.
5. For the foregoing reasons, the application is allowed and the applicant be released on furnishing surety in the sum of Rs,30,000 and executing P.R. Bond in the like amount to the satisfaction of trial Court.